Forthcoming book
TORTURE AND ITS DEFINITION IN INTERNATIONAL LAW:
AN INTERDISCIPLINARY APPROACH
Edited by METİN BAŞOĞLU
To be published by Oxford University Press New York in August 2017
This book presents an interdisciplinary approach to definition of torture by a group of prominent scholars of behavioral sciences, international law, human rights, and public health with internationally recognized expertise and authority in their field. It brings together behavioral science and international law perspectives on torture in an effort to promote a sound theory- and empirical-evidence-based legal understanding of torture. The book consists of four parts. The behavioral science perspective in Part I includes a learning theory formulation of torture, which points to ‘helplessness under the control of others’ as a defining element of torture. This formulation entails a contextual / cumulative approach in assessment of “pain or suffering” induced by ill-treatments and a ‘risk-based’ approach in assessment of individual cases to avoid the problem of circularity in case-by-case approach. Also reviewed are the definitional implications of this formulation for ill-treatments in different contexts, such as domestic violence and adverse conditions of penal confinement. Part 2 consists of four chapters that present international law perspectives on definition of torture and highlight the increasingly broader coverage of ill-treatments in contexts beyond official custody. Part 3 consists of chapters that provide an account of the U.S. experience with torture in the aftermath of 9/11 and discuss definitional issues around “enhanced interrogation techniques.” Part 4 consists of a concluding chapter (by the editor) that addresses the comments by international law scholars on the behavioral science perspective on torture and reviews the points of agreement and disagreement between behavioral science and international law perspectives.
CONTRIBUTORS
Shirin Bahkshay, J,D. Psychology Department, University of California Santa Cruz, U.S.A.
Metin Başoğlu, M.D., Ph.D., Professor of Psychiatry, Co-Director of the Istanbul Center for Behavior Research and Therapy, Istanbul, Turkey
Kaj Björkqvist, Ph.D., Professor of Developmental Psychology, Åbo Akademi University, Vasa, Finland; Adjunct Professor (Docent) of Social Psychology at Turku University, Finland
Lisa Davis, Clinical Professor of Law, International Women’s Human Rights Clinic, City University of New York School of Law, U.S.A.
Laurel E. Fletcher, J.D., Clinical Professor of Law and Director, International Human Rights Law Clinic, University of California, Berkeley, School of Law, U.S.A.
Yuval Ginbar, Ph.D., Legal Adviser, Amnesty International, London, U.K.
Craig Haney, Ph.D., Professor of Psychology and Director of Legal Studies, Social Sciences Division, Psychology Department, University of California Santa Cruz, U.S.A.
Alexa Koenig, Ph.D., J.D., Executive Director of the Human Rights Center and Lecturer in Law and Legal Studies at the University of California, Berkeley, School of Law
Richard J. McNally, Ph.D., Professor and Director of Clinical Training, Department of Psychology, Harvard University, Cambridge, Massachusetts, U.S.A.
Juan E. Méndez, J.D., former U.N. Special Rapporteur on Torture and Professor of Human Rights Law in Residence, Washington College of Law, American University
Andra Nicolescu, B.A., MSc., J.D., Assistant Director, Anti-Torture Initiative, American University Washington College of Law
Manfred Nowak, LL.M., Professor of International Law and Human Rights, University of Vienna; Head, Research Center Human Rights, University of Vienna; Director, Ludwig Boltzmann Institute of Human Rights, Law School, University of Vienna, Austria.
Hernán Reyes, M.D., Senior Research Fellow, Human Rights Center, University of California Berkeley; Former Senior Medical Coordinator for “Health in Detention” for the International Committee of the Red Cross, Geneva, Switzerland
Leonard Rubenstein, J.D., LLM, Director, Center for Public Health and Human Rights, Johns Hopkins Bloomberg School of Public Health and Johns Hopkins Berman Institute of Bioethics
Eric Stover, Faculty Director and Adjunct Professor of Law and Public Health, Human Rights Center, University of California, Berkeley School of law, U.S.A.
Nora Sveaass, Ph.D., Associate Professor of Psychology, Department of Psychology, University of Oslo, Norway; Former member of the United Nations Committee Against Torture; Now member of UN Subcommittee on Prevention of Torture
Ebru Şalcıoğlu, Ph.D., Professor of Psychology, Director of the Istanbul Center for Behavior Research and Therapy Istanbul, Turkey
CONTENTS
PREFACE
INTRODUCTION – METİN BAŞOĞLU
Background
A theory- and evidence-based approach in understanding torture
Preparation of the book
Why revisit U.S. experience with “enhanced interrogation techniques”?
Challenges in reconciling law with science
References
Preview of Contents
Part I: Behavioral science perspectives
Part II: International law perspectives
Part III: “Enhanced interrogation techniques: Definitional issues
Part IV: Discussion and conclusions
PART I
Behavioral Science Perspectives
CHAPTER 1: A theory- and evidence-based approach to definition of torture
METİN BAŞOĞLU
Introduction
A learning theory model of trauma
Mental pain or suffering: Definitional and methodological issues in assessment
Mental pain or suffering: Definitional Issues
Contextual determinants of mental pain or suffering
Assessment and measurement of mental pain or suffering
Captivity stressors associated with severe mental pain or suffering
A learning theory formulation of torture
Cumulative versus individual-method-based approach to torture
Distinction between torture and CIDT in international law
Torture by non-State actors
Torture and gender-based violence
Implications for emerging trends in interpretation of torture
Concluding comments
References
CHAPTER 2: Control as a defining characteristic of torture: A learning theory analysis of the Kubark interrogation manual
HERNÁN REYES & METİN BAȘOĞLU
Introduction
Defining control: Captor’s perspective
Non-coercive interrogation
Coercive interrogation
Conclusions
References
CHAPTER 3: A battle for control: Resisting torture and cruel, inhuman and degrading treatment at Guantánamo
ALEXA KOENIG
Introduction
Methods
A learning theory of torture
A learning theory analysis of captivity experiences in Guantánamo
Sensory deprivation
Sexualized violence
Linguistic and cultural isolation
Indefinite detention
Resistance to Institutional Control
Implications for the definition of torture
Conclusion
References
CHAPTER 4: An evolutionary approach to humiliation and shame induced by inhuman and degrading treatment
KAJ BJÖRKQVIST
Introduction
The concepts of humiliation and shame
Nonverbal signals of shame
The evolution of shame
Social pain
Further evidence for the social pain hypothesis
Social defeat as a stressor
Concluding remarks
References
CHAPTER 5: Domestic violence and torture: A theoretical and empirical comparison
EBRU ŞALCIOĞLU & METİN BAȘOĞLU
Introduction
Definition of gender-based violence
Prevalence of domestic violence
Physical and mental health and effects of domestic violence in women
A comparative study of domestic violence and torture
Samples
Assessment measures
Findings
Nature and severity of trauma
Fear and helplessness effects
PTSD and depression
Mechanisms of traumatic stress
Discussion
References
CHAPTER 6: Contexts of Ill Treatment: The Relationship of Captivity and Prison Confinement to CIDT and Torture
CRAIG HANEY & SHIRIN BAKHSHAY
Introduction
The Psychological dimensions of CIDT and torture
Conditions of confinement and the facilitation of ill-treatment
The nature and effects of adverse captivity
The painful and traumatic nature of prison life
The psychic cost of “coping” in confinement
New research on prison effects and the new prison form
Exacerbating the effects of CIDT and torture in a context of captivity
Conditions of confinement as CIDT and torture per se
Conclusion
References
CHAPTER 7: The Meaning of Psychological Trauma
RICHARD J. MCNALLY
The meaning of psychological trauma
The emergence of Posttraumatic Stress Disorder
Symptoms of PTSD
The evolving concept of trauma in the DSM
Psychological trauma in DSM-III
Psychological trauma in DSM-III-R
Psychological trauma in DSM-IV
Psychological trauma in DSM-5
Psychological trauma: Further complexities
Psychological versus physical trauma
The dose-response model of trauma
Guilt, shame, and trauma
Trauma in historical context
Implications for CIDT
Conclusions
References
PART II
International Law Perspectives
CHAPTER 8: Evolving Standards for Torture in International Law
JUAN E. MÉNDEZ & ANDRA NICOLESCU
Introduction
The absolute prohibition of torture and other ill-treatment in international law
The definition of torture and other cruel, inhuman and degrading treatment in
international law
The constitutive elements of the definition of torture and the evolution of the legal framework
Nature of the act and intensity of pain and suffering
Purpose
Intent
State involvement, treatment in private institutions and private actors
Gradual evolution of the definition of torture and incorporation of domestic violence and FGM into the definition of torture and other ill-treatment
Evolution of the framework to apply to abuses in health-care settings: A new normative framework
The application of the constitutive elements of the definition of torture and other ill-treatment in health-care settings and examples of abuses in health-care settings amounting to torture or other ill-treatment
Reproductive rights violations
People who use drugs and compulsory detention for medical conditions
Denial of pain treatment
Treatment of lesbian, gay, bisexual, transgender, and intersex persons in health-care settings
The treatment of persons with psychosocial and other disabilities – A paradigm shift influenced by the CRPD
A learning theory model of torture: Reconciling evidence-based and international law approaches to torture and other ill-treatment
CHAPTER 9: The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: The absolute prohibition and the obligation to prevent
NORA SVEAASS
Introduction
Torture and State responsibility
The definition of torture and ill-treatment
The relationship between infliction of pain and its consequences
What does ratification of the Convention Against Torture imply?
Reporting obligations
The substantial obligations
The definition and torture as a criminal offence (Article 1 & Article 4)
Prohibition (Art. 2)
Accountability (Art. 2 & Art. 4)
Prevention (Art. 2)
Gender-related Crimes
Discrimination
Persons with disabilities
Minors
Training (Art. 10)
Redress after torture and ill-treatment (Art. 14)
Concluding comments
References
CHAPTER 10: Making human rights sense of the torture definition
YUVAL GINBAR
Introduction
Part I: What is right with the torture definition?
It reflects the moral abhorrence of torture
It defines both a human rights violation and a crime
It defines torture neatly and fairly, avoiding both trivial and onerous burdens of proof
It is flexible enough to facilitate progressive interpretations
Torture by non-state actors
Gender-based torture
Torture in healthcare settings
It maintains a practically indispensable, morally defensible, ‘lawful sanctions’ exception
Tackling the causes of crime
Clarity and legality
Minimization of use
Humane treatment, social rehabilitation
It makes virtually no empirical assertions and does not encroach on science
Part II: Distinguishing “torture” from “cruel, inhuman or degrading treatment or punishment”
The ‘torture minus’ approach
Why not ‘purpose only’?
Why not ‘severity only’?
Crossing the ‘severity’ line – instant impact acts, cumulative effects
Part III: The lived realities of torture
The quantitative aspect
The demography
The methods
Conclusions
Bibliography
CHAPTER 11: The gendered dimensions of torture: Rape and other forms of gender-based violence as torture under international law
LISA DAVIS
Introduction
Recognizing gender-based violence as human rights violations
Dismantling the public/private wall
The Vienna Conference: Recognizing women’s rights as human rights
Building legal recognition of rape as a form of torture
Confronting institutional gender discrimination
The making of the International Criminal Court
Articles of the Rome Statute
Substituting the word gender for sex
Challenges to bringing rape as torture charges under international criminal law
The Akayesu case
Beyond Akayesu
The Bemba case
Confronting violence and discrimination during times of peace: When states are responsible for gendered torture committed by private actors
Defining torture
Intent
Discrimination purposes
Acquiescence
Gender-based violence, discrimination and due diligence
The disproportionate effect of gender-based violence
The Cotton Fields case of Ciudad Juárez, Mexico
The case of Jessica Lenahan (formerly known as Jessica Gonzales)
The case of Maria da Penha
Codifying gender-based violence as discrimination: The case of Castro-Castro v. Peru
When states lack the will to address gender-based violence: The case of Haiti
Why recognize rape and other forms of gender-based violence as torture?
PART III
“Enhanced Interrogation Techniques”
Definitional Issues
CHAPTER 12: The Cumulative effect: A medico-legal approach to United States torture law and policy
ERIC STOVER, K. ALEXA KOENIG, & LAUREL E. FLETCHER
Introduction
Torture and the “New Paradigm” for the “War on Terror”
Torture by any other name
International jurisprudence on torture and illegal cruelty
US interpretations of international and domestic prohibitions on torture and illegal cruelty
The physical and psychological sequelae of torture and other forms of illegal cruelty
Conclusion
References
CHAPTER 13: Definition of torture in US law: Does it provide legal cover for “enhanced interrogation techniques”?
METİN BAŞOĞLU
Introduction
“Prolonged mental harm”
Element of specific intent to cause “prolonged mental harm”
“Learned helplessness” in humans
Evidence of specific intent in “enhanced interrogation techniques”
Administration of mind-altering substances or other procedures
Concluding comments
References
CHAPTER 14: Powerlessness as a defining characteristic of torture: Comments on Başoğlu’s chapter on definition of torture in US Law
MANFRED NOWAK
Introduction
“Enhanced interrogation techniques” aimed at causing “learned helplessness” in detainees
“Powerlessness” as an element of defining torture
Torture of detainees at Guantánamo Bay
US and UN Standards on Torture
Torture in CIA Black Sites
Conclusions
CHAPTER 15: From complicity to impunity: Medical participation and the definition of torture at the CIA
LEONARD S. RUBENSTEIN
Introduction
Background
Participation of clinicians in torture at the Black Sites
Medically-imposed “limitations” on enhanced interrogation
Uncomfortably cool environments
Restricted diet
Water dousing
White noise or loud music
Shackling and prolonged standing
Sleep deprivation
Cramped confinement in a box
Waterboard
Medical authorization to support legal arguments for enhanced interrogation
Shackling
Cold water
Sleep deprivation
Waterboard
Combined methods
Conclusion
References
PART IV
Discussion and Conclusions
CHAPTER 16: Discussion and conclusions
METİN BAŞOĞLU
Comments by Méndez and Nicolescu
Comments on Chapter 6 by Haney and Bakhshay
Comments on Chapter 10 by Yuval Ginbar
“Common sense” approach to torture
Torture as an act with purpose, intent, and a severity threshold
Definition of torture as a theoretical construct
Too wide definition of torture
Concepts of powerlessness and helplessness
Morally defensible “lawful sanctions” exception
Torture definition and empirical assumptions
Defining CIDT
Crossing the ‘severity’ line
Concluding comments
References
PREVIEW OF CONTENTS
Part I
Behavioral Science Perspectives
Chapter 1 is the leading chapter that defines the theoretical framework of Part 1. In this chapter I present a learning theory model of trauma, review supporting evidence, provide a definition of “pain or suffering,” discuss its contextual determinants in a captivity setting, and describe a methodology for assessment and measurement of its severity. The next section demonstrates a contextual / cumulative approach to captivity stressors associated with “severe pain or suffering” and presents supporting empirical evidence from our studies. This is followed by a learning theory formulation of torture involving two defining characteristics: (1) exposure to an environment characterized by unpredictable and uncontrollable stressors the cumulative impact of which poses an increased risk of helplessness and hopelessness responses and associated traumatic stress reactions and (2) such exposure takes place in a setting where the person is under the physical control of one or more persons or occurs as a consequence of actions of others who are in a position to exercise authority or control over the person. The chapter continues with a critique of an individual-method-based approach to torture and ends with a review of implications of research evidence for various issues pertaining to definition of torture in international law, such as the distinction between torture and cruel, inhuman, and degrading treatment (CIDT), torture by non-State actors, gender-based violence, and emerging trends in interpretation of torture.
The two chapters that follow complement Chapter 1 in demonstrating the usefulness of learning theory, specifically the concept of helplessness, in understanding torture. In Chapter 2, Hernan Reyes and I present a learning theory analysis of the Kubark Counterintelligence Interrogation Manual to demonstrate why helplessness is the defining element of torture from a psychological perspective. This analysis is also useful in understanding why “enhanced interrogation techniques” constitute torture. Theoretically, if helplessness is the primary aim of torture from the captors’ perspective, then this must be reflected in the captives’ psychological responses. This hypothesis is tested in Chapter 3 by Alexa Koenig, who provides a detailed account of the experiences of a group of former Guantanamo detainees subjected to “enhanced interrogation techniques.” She demonstrates not only the helplessness effects of such treatment but also provides excellent examples of coping responses in the “battle for control” with the captors.
Shame and humiliation are among the most common experiences of torture survivors and yet the severity of humiliating treatments relative to other ill-treatments recognized as torture has received relatively less attention in empirical research. Research evidence presented in Chapter 1 pointing to lack of a severity distinction between physical torture and cruel, inhuman, and degrading treatments requires an explanation and the answer possibly lies in the evolutionary basis of shame and humiliation. Hence, Kaj Björkqvist addresses this issue in Chapter 4 by reviewing the evolution of “social pain” and “social defeat” and their neurophysiological mechanisms in human and sub-human species to help us better understand why humiliating treatments can be as severe as physical torture in their psychological impact.
The chapters so far clarify the defining characteristics of torture from a psychological perspective and demonstrate the usefulness of this theoretical framework in understanding torture with clear elements of purpose, intent, and official involvement. There are, however, forms of violence by private actors, such as gender-based violence, and certain penal procedures, such as deprivation of liberty through imprisonment, that present certain conceptual, contextual, and definitional commonalities with torture. Two chapters are intended as ‘case studies’ to illustrate these commonalties. In Chapter 5 Ebru Şalcıoğlu and I briefly review the literature evidence on domestic violence and present evidence from a recent comparative study of torture and domestic violence to demonstrate the commonalities between torture and domestic violence. In Chapter 6, Haney and Bakhshay, based on their extensive experience with prisoners in the United States, describe the “normative conditions of confinement” in prisons, reviews the contextual elements of unpredictability and uncontrollability in prison settings, highlights the extent of “pain or suffering” associated with adverse prison conditions, and provides important insights into the social psychological dynamics of prison settings that account for such suffering.
In Chapter 7, the last chapter of Part 1, Richard McNally approaches the definitional issues around torture from the broader perspective of psychological trauma in behavioral sciences. He presents an account of how the concepts of psychological trauma and Posttraumatic Stress Disorder evolved in successive versions of the Diagnostic and Statistical Manual of Mental Disorders (DSM), reviews the distinction between psychological and physical trauma, the dose-response model of trauma, the role of guilt and shame in trauma, and points to the implications of current knowledge in the field for various definitional issues around torture.
Part II
International Law Perspectives
The chapters in this section present authoritative reviews of international law pertaining to torture. They review definition of torture in international law, present an up-to-date account of emerging trends in its interpretation, and thereby provide an idea about the extent of the coverage of various forms of ill-treatment in international law. These chapters also serve as a reference for Part 1 authors in their review of various legal issues from the perspective of their own disciplines.
In Chapter 8, Juan Méndez, the former UN Special Rapporteur on Torture, and Andra Nicolescu present a review of how the international organs of human rights protection gradually incorporated issues like domestic violence and female genital mutilation into the definition of torture or cruel, inhuman and degrading treatment. Pointing to certain practices applied to persons with mental disabilities, persons who are denied pain relief, persons suffering from drug addiction, and women who seek abortions when legally available that may well constitute torture, he notes that the mandate of the UN Special Rapporteur on Torture extends to situations where the pain or suffering inflicted is attempted to be justified in terms of medical necessity or therapeutic purposes, if that pain and suffering crosses the line and constitutes torture or CIDT.
In Chapter 9, Nora Sveaass, a former member of the UN Committee against Torture (UNCAT), provides insights into how the Committee interprets torture and CIDT and the legal mechanisms utilized in prevention of torture and provision of redress for survivors. She presents UNCAT jurisprudence in different areas, ranging from violence against women, human trafficking, forced prostitution, and female genital mutilation to other practices considered as violations of the Convention, such as involuntary hospitalization of persons with psychosocial disabilities and acts of torture or other ill-treatment by private actors.
In Chapter 10, Yuval Ginbar, legal adviser to Amnesty International, reviews the definition of torture in international law and presents a “common sense” understanding of torture. He describes the main definition-related challenges that Amnesty International has faced in decades of campaigning against torture and other cruel, inhuman or degrading treatment or punishment, and particularly in recent years. He analyzes these challenges and explain the positions Amnesty International has developed, both in response to these challenges and more broadly to ensure that definitions and concepts of torture and other ill-treatment are interpreted so as to extend the widest possible protection against abuses. He also presents a critical review of the arguments and conclusions in Part 1 chapters.
The issue of gender-based violence is given more focused attention in Chapter 11, where Lisa Davis argues that international law’s recognition of certain forms of gender-based violence as forms torture or other CIDT, enhances the relevance of the torture framework and strengthens States’ mandate to protect. She examines how recognition of the gendered aspects of torture can provide more effective remedies for women and LGBT people as well as increase accountability for State and non-State actors. Through an analysis of the international legal framework, she reviews a range of recognized forms of torture or CIDT, including rape, domestic violence, female genital mutilation, and denial of reproductive rights, and comments on the growing trend of including trafficking, “corrective rape” and “honor crimes” within the definition of torture or CIDT as well as concerns in the debate to expand the definition of torture.
PART III
“Enhanced Interrogation Techniques”
Definitional Issues
This section is devoted to definitional issues surrounding ill-treatment of detainees held in U.S. custody in the years that followed 9/11. In Chapter 12, Eric Stover, Alexa Koenig, and Laurel Fletcher demonstrate how the U.S. government selectively manipulated the medical and health literatures following the attacks of September 11, 2001 to justify the torture and cruel, inhuman and degrading treatment of detainees. They analyze the Department of Justice Office of Legal Counsel’s “torture memos” to illustrate the ways in which governments can attempt to circumvent the protections offered by existing definitions of torture, even while claiming to operate within legal limits. The authors offer a stark warning about the ways in which research findings can be perverted—and contradicting studies ignored—to justify governments’ policy aims when those aims conflict with legal constraints.
In Chapter 13, I review the scientific basis for the U.S. definition of torture and its interpretation in the “torture memos” in light of the U.S. Senate Intelligence Committee Report on CIA’s detention and interrogation program, which confirmed the use of “enhanced interrogation techniques” to induce “learned helplessness” in detainees. I argue that “learned helplessness” constitutes “prolonged mental harm” that is severe enough to qualify as torture even by U.S. standards and conclude that the U.S. definition of torture suffers from certain logical inconsistencies, scientifically unfounded assumptions, and even ‘loopholes’ that may well render legal cover for use of “enhanced interrogation techniques” difficult, if not impossible – at least not in a way that can be justified by logical reasoning or scientific evidence.
In Chapter 14, Manfred Nowak provides a commentary on Chapter 13, expressing agreement with my analysis of “enhanced interrogation techniques” and conclusion that learned helplessness is mental harm that is severe enough to qualify as torture even by U.S. standards. He provides a critical review of the restrictive understanding of torture in the “torture memos” and a brief account of his past work on this issue as the UN Special Rapporteur on Torture. He compares the U.S. and UN definitions of torture and notes that both definitions include “powerlessness” as the defining element of torture. On the basis of his interviews with hundreds of torture survivors around the world, including survivors in the U.S. “war on terror,” he concludes that treatment that induces fear and mental stress can easily reach the threshold of severe mental pain or suffering and thus amount to torture, even in the absence of other methods of coercion.
In Chapter 15 Leonard Rubinstein focuses on medical involvement in administration of “enhanced interrogation techniques.” He explores how the medical staff perceived their role in the process as being limited to keeping people alive, rather than preventing severe mental or physical pain, which is at the heart of definition of torture both under the UN Convention Against Torture and the narrower definition in U.S. He concludes that their distorted view of what constituted torture, based neither on an understanding of the law nor on empirical evidence about the experience of torture, proved highly influential in the administration of the CIA’s torture program.
Part IV
Discussion and Conclusions
In Chapter 16, the final chapter of the book, I address the comments by other authors on the learning theory formulation of torture presented in Part 1, discuss the definitional implications of this formulation for deprivation of liberty in adverse conditions of penal confinement, and review the points of agreement and disagreement between behavioral science and legal perspectives on definition of torture.
INTRODUCTION
Torture is without doubt a difficult concept to define. In his review of the various definitions proposed by various legal historians and lawyers since the 13th century, Peters (1985) noted that “all find one common element in torture: it is torment inflicted by a public authority for ostensibly public purposes” (p.3). This long-standing view is also reflected in the contemporary definition of torture in the United Nations Convention against Torture (UNCAT; UN General Assembly, 1984):
For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Although this definition, originally drafted with State-perpetrated torture in mind, has been widely accepted internationally, controversies on its various elements and whether or how it can be applied to ill-treatments in settings other than official custody have continued to date. In the early phases much controversy surrounded certain phrases such as “torture means any act,” “severe pain or suffering,” “physical or mental,” “for such purposes,” “public official,” and “does not include pain or suffering only from lawful sanctions” (Miller, 2005). The “lawful sanctions” clause, one of the most controversial elements of the definition during the drafting of this definition, still remains highly controversial (Nowak & McArthur, 2008). The 1990s saw much debate on whether gender-based violence should come under the definition (Davis, Chapter 11, this volume). In the early 2000s the distorted interpretation of torture by the U.S. government triggered a protracted debate on whether “enhanced interrogation techniques” constitute torture. Among other issues of debate was the expansion of the definition to include certain ill-treatments in other institutional settings, such as compulsory detention for medical treatment, violations of reproductive rights, denial of pain treatment, and various forms of ill-treatment experienced by persons with psychosocial disabilities and some marginalized groups, including LGBTI, persons who use drugs, and sex workers (UN Human Rights Council, 2013).
Defining torture has traditionally been considered as a primarily legal matter falling into the domain of law. Torture, on the other hand, is a traumatic event and, like any other trauma, it has a psychological impact. Therefore, it is not possible to define torture without reference to “pain or suffering”- a construct that falls primarily into the domain of behavioral sciences. Furthermore, it is not possible to define torture in ways that afford maximum protection for people without an adequate understanding of the psychology of torture and the contextual processes through which it induces “severe pain or suffering.” Although behavioral sciences have much to contribute to such an understanding, much of the debate on torture over the last few decades has not been sufficiently informed by behavioral sciences for various reasons. This book represents an effort to contribute to both legal and public understanding of torture by presenting a psychological formulation of torture based on sound theory and evidence. It brings together behavioral science and international law perspectives on torture with a view to examining their commonalities and differences in understanding torture and reviewing the ways in which behavioral sciences can inform international law on this issue.
Background
Several considerations prompted the preparation of a book on torture and its definition. I should first acknowledge the role of Oxford University Press New York in providing the initial impetus for this project. When they contacted me in January 2013 to ask if I would edit a book on torture I thought what the field needed was not yet another book on consequences of torture but one that promotes a sound theory- and evidence-based understanding of torture.
In addressing the question “Why study torture?” in my 1992 book on Torture and Its Consequences: Current Treatment Approaches (Başoğlu, 1992), I had argued that torture is not a human rights problem confined to remote dictatorships and that no political system or ideology can claim immunity from human rights violations. I had also noted that more sophisticated and psychological methods of torture are likely to be developed as international pressures against torture gain momentum. These predictions unfortunately turned out to be true with the events that unfolded after 9/11. The “war-on-terror” raised serious human rights issues concerning the treatment of detainees by the United States and its allies. Whether “enhanced interrogation techniques” constitute torture became the subject of considerable debate in both the world media and the public after the distorted interpretation of torture in the “torture memos” of the U.S. government. Much of this debate was not sufficiently informed by science and reflected various misconceptions about torture on both sides. In an effort to bring a scientific perspective on this debate, we published a research article (Başoğlu, Livanou, & Crnobarić, 2007) to evidence the point that “interrogation techniques” of the “enhanced” kind are no less severe in their immediate and long-term mental effects than physical torture. In the absence of such research evidence at the time, this finding received wide attention from both the human rights community and the world media, confirming my long-held belief that scientific data can serve as a useful form of advocacy against human rights violations in shaping media and public opinion and thereby bringing pressure to bear upon governments. Following the publication of this article, I received numerous requests from both the human rights community and the world media either for information or research evidence in relation to particular techniques, such as “waterboarding” or sleep deprivation, among others. As such exclusive focus on individual methods in total disregard for contextual processes in a captivity setting reflects a rather restrictive understanding of torture, I published another research article (Başoğlu, 2009) two years later to demonstrate the importance of a contextual and cumulative approach in understanding what torture is. As misconceived notions about torture can not only lead to errors in judgment but are also open to potential abuse, I thought that a book expanding on these two articles and clarifying further what torture is from a psychological perspective might be useful in dispelling various misconceptions.
A behavioral science perspective on torture can also inform international law in addressing various difficult questions raised by the criterion of “severe pain or suffering” in definition of torture. For example, what are the psychological processes that account for “severe pain or suffering”? Is there a justifiable distinction between “mental” and “physical” pain or suffering? What are their relative contributions to “severe pain or suffering”? What role do contextual factors in a captivity setting play in “severe pain or suffering”? How can “severe pain or suffering” be conceptualized, defined, operationalized, and assessed in ways so as to afford maximum protection for people? It is difficult to address these questions without recourse to empirical evidence based on reliable assessment methodology. Without such evidence, any estimation of severity of pain or suffering would be based on subjective and therefore error-prone judgments, particularly in cases that fall into the grey area between ill-treatments recognized as torture in and of themselves and other ostensibly ‘low intensity’ ill-treatments.
A behavioral science approach to definitional issues can also be helpful in testing the validity of certain assumptions implicit at least in the text of the UNCAT. Just to cite an example, Article 16 refers to cruel, inhuman, or degrading treatments (CIDT) as acts that do not “amount to torture,” the implication being that torture is a more severe form of CIDT. This is a testable hypothesis and our 2007 and 2009 studies cited earlier found no such distinction, thus supporting the trend away from such a severity distinction in interpreting the definition. Furthermore, an expansion of legal understanding of torture beyond ill-treatments under official custody implies a growing recognition of the fact torture is a broader concept than previously understood. A theory- and evidence-based formulation of torture can test the scientific validity of such broader understanding of torture and point to new directions in this respect.
A Theory- and Evidence-Based Approach in Understanding Torture
A good understanding of torture as a trauma requires first and foremost a sound theoretical framework. Among the different theories available for this purpose, contemporary learning theory (see Mineka & Zinbarg, 2006) is the one that has been most extensively tested and empirically validated. Since the 1960s, substantial experimental work, such as inescapable shock experiments with animals (involving giving electric shocks to an animal placed in a box while not allowing any means of stopping the shocks), showed that unpredictability and uncontrollability of stressor events are associated with anxiety and fear, which lead to certain associative, motivational, and emotional deficits that closely resemble the effects of traumatic stress in humans. These deficits include “learned helplessness” – a phenomenon characterized by failure of animals initially exposed to uncontrollable shocks to later learn to escape or avoid shocks that were potentially controllable in a different situation (Seligman & Maier 1967; Overmier & Seligman, 1967).
As much of the work that led to the concept of learned helplessness stemmed from animal experiments, its relevance to humans was largely uncertain until the 1990s. In the late 1980s we conducted a series of in-depth interviews with torture survivors to examine the parallels between animal responses to inescapable shock and human responses to torture. The similarities between animal and human responses to uncontrollable stressors were indeed striking. Based on evidence gleaned from these interviews, Susan Mineka (a prominent learning theorist and former student of Seligman) and I proposed a learning theory formulation of torture (Başoğlu and Mineka, 1992). This formulation implied two main hypotheses: (1) torture-induced traumatic stress is closely associated with unpredictability and uncontrollability of stressor events experienced during captivity and (2) if torture-related traumatic stress is mediated by helplessness anxiety or fear, then psychological interventions designed to enhance sense of control over traumatic stressors would reduce traumatic stress.
During the years that followed publication of this work we conducted more than 40 studies to test these two hypotheses. This work was carried out in four stages. The first stage involved a series of consecutive studies with a total of 202 individuals tortured for political or non-political reasons in the context of a politically repressive military regime in Turkey in the early 1980s. The first study (Başoğlu et al., 1994) examined the psychological effects of torture using a controlled design, while others (Başoğlu, Paker, Taşdemir, Özmen, & Şahin, 1994; Bașoğlu & Paker, 1995; Bașoğlu et al., 1996; Bașoğlu et al., 1997; Bașoğlu, 1998, unpublished data) explored various factors associated with mental outcomes, including unpredictability and uncontrollability of stressor events experienced during detention or imprisonment.
The second stage involved a multi-site study of 1,358 war survivors in former Yugoslavia countries (Bosnia Herzegovina, Republica Srpska, Serbia, and Croatia) in the mid-1990s (Başoğlu et al, 2005). The sample consisted of five sub-groups selected in accordance with five ‘index’ traumas of primary interest to the study: combat, torture, refugee status, internal displacement, and aerial bombardment (of Belgrade by the NATO). The tortured group included 279 survivors. In addition to mental outcomes of various forms of war trauma, this study also examined the impact of trauma on beliefs about safety, justice, trust, war cause, and religion, as well as cognitive and emotional responses to perceived impunity for those held responsible for trauma and their association with traumatic stress reactions.
By the end of the 1990s we had gathered sufficient evidence on the critical role of loss of control or helplessness in traumatic stress and were ready to test the second hypothesis concerning effective treatment. Our research program evolved into its third stage, when Turkey was struck by two major earthquakes in 1999. These earthquakes provided an opportunity to test the same two hypotheses with natural disaster survivors, with particular emphasis on the second one so that we could develop an effective psychological intervention for survivors, as well as a mental healthcare model that would enable wide dissemination of treatment in the most cost-effective fashion. This stage of our work involved about 30 studies, ranging from case studies, field surveys, and epidemiological studies to randomized clinical trials, ultimately leading to the development of a highly effective psychological intervention designed to reduce traumatic by enhancing sense of control, thus named as Control-Focused Behavioral Treatment (CFBT; Başoğlu, Livanou, Şalcıoğlu, & Kalender, 2003; Başoğlu, Livanou, & Şalcıoğlu, 2003; Başoğlu, Şalcıoğlu, Livanou, Kalender, & Acar, 2005; Başoğlu, Şalcıoğlu, & Livanou, 2007; Başoğlu & Şalcıoğlu, 2011). In 2010 we launched a treatment study with asylum-seekers in Turkey, which showed that CFBT is also highly effective in treating war and torture trauma Şalcıoğlu & Başoğlu, in preparation). This process represents the fourth and current stage of our work, the scope of which was recently expanded to include domestic violence. In the course of 25 years, our work involved more than 7,000 mass trauma survivors. A large part of this work was published in our book on A Mental Healthcare Model for Mass Trauma Survivors (Başoğlu and Şalcıoğlu, 2011).
Although our studies related to different types of trauma, they were all unified around the same theoretical framework, tested the same two hypotheses, and employed essentially the same methodology. As such, they represent a rather unique series of studies. They were all inter-related in the sense that a study of a particular form of trauma informed our understanding of another type of trauma. For example, it was the findings from our studies of torture in the early 1990s that ultimately led to the development of CFBT with earthquake survivors 10 years later. Similarly, the insights we gained into earthquake trauma in the early 2000s informed our current work aimed at developing self-help treatments for war and torture survivors and cost-effective methods for their dissemination to masses of survivors. Thus, the entire scope of our 25 years of research summarized in this book not only sheds some light on definitional issues around torture but also provides important insights into effective treatments for torture trauma.
Much of the empirical evidence presented in the book in support of a learning theory formulation of torture draws on our own studies. It is important to note here that this does not reflect a disregard for other research on torture in the field. Although much research has been published since the 1970s, most studies have focused on documenting its health effects. While these studies have been very valuable in raising public awareness of the problem and providing support for human rights efforts against torture, their relevance to a psychological analysis of what constitutes torture and why is limited for various methodological reasons. First of all, and most importantly, most studies have not explored the mechanisms of traumatic stress in torture trauma using an empirically testable theoretical framework. Consequently, many studies, particularly the early ones, have not contributed much to a theoretical understanding of torture beyond its simplistic description as acts designed to “destroy the victim’s personality.” Second, most studies have not been conducted with the specific aim of addressing definitional issues, and as such, have not used a sufficiently sophisticated methodology required for study of these issues. Third, most studies have examined the effects of torture in refugees, thereby not avoiding the confounding psychological effects of refugee status. Fourth, they have focused on individual forms of torture, disregarding the complex contextual processes that play a significant role in determining both the cumulative impact of torture, as well as the relative psychological impact particular torture methods. This problem also reflects their atheoretical approach to torture. Fifth, most studies have relied on measures of ‘objective’ rather than ‘subjective’ severity of torture, disregarding the fact that the severity of torture as perceived by a person plays a more important role in traumatic stress. Sixth, they have not attempted to conceptualize, define, operationalize, and measure the concept of “pain or suffering” central to all definitions of torture, a process essential for testing definitional assumptions or hypotheses. Seventh, they have not attempted to assess the relative severity of “mental pain or suffering” associated with different torture methods, whether involving physical pain or not, using both objective and subjective measures. Eighth, most studies have not examined the complex interactions among various captivity stressors using sufficiently sophisticated methodology (such as multivariate statistical techniques), which is essential in understanding the cumulative impact of torture. Finally, the complex and differential associations between exposure to various stressor events and long-term psychological outcomes have received relatively little attention.
The reasons for the relative scarcity of studies that help us understand the psychology of torture are complex and beyond the scope of this book. Suffice it to say, however, that research on torture and its treatment has lagged behind progress in the field of psychological trauma in general, as repeatedly pointed out in our publications over the years (Başoğlu and Marks, 1988; Başoğlu, 1992, 1993, 2006; Başoğlu and Şalcıoğlu, 2011). Although our studies, some conducted well before 9/11, were not specifically aimed at examining definitional issues, their assessment methodology, which was designed to explore mechanisms of traumatic stress during captivity with a view to developing an effective psychological treatment, turned out to be quite useful in addressing these issues, as demonstrated by our 2007 and 2009 articles, as well as by this book.
Preparation of the Book
In keeping with its aims, this book brings together prominent scholars from various disciplines, including international law, public health, human rights, and behavioral sciences. The book was conceived more as a collaborative effort among the authors than a mere compilation of independent chapters. Accordingly, the contributing authors had a two-day meeting in Istanbul in 2013 to discuss the scope and contents of the book. This meeting was very helpful in providing an idea about the important issues that needed to be covered and demonstrating issues of potential agreement or disagreement.
As an important aim of the book was to examine the extent to which scientific and legal perspectives converge or diverge on definitional issues, the different parts of the book needed integration with each other. Accordingly, all authors were given an opportunity to read the other authors’ chapters before writing or finalizing their own chapters, so that they could review and comment on the content and conclusions of other chapters.
The book consists of four parts. Part 1 includes seven chapters that present a behavioral science perspective on torture. Part 2 consists of four chapters that present international law perspectives on definition of torture. Part 3 consists of chapters by a mixed group of international law, human rights, public health, and mental health scholars that provide an account of the U.S. experience with torture in the aftermath of 9/11 and discuss definitional issues around “enhanced interrogation techniques.” Part 4 consists of a single chapter (by the editor) that addresses the comments by international law scholars on the behavioral science perspective on torture.
Why Revisit U.S. Experience with “Enhanced Interrogation Techniques”?
The U.S. experience with “enhanced interrogation techniques” has been given special attention in this book for two important reasons. Most important for the purposes of this book is the fact that there is much to learn from CIA’s interrogation methods in understanding and defining torture from a psychological perspective. As noted earlier, the learning theory formulation of torture posits that helplessness induced by uncontrollable stressors is the defining element of torture. Among the ‘methodologies’ of torture used around the world, “enhanced interrogation techniques” are the ones that best illustrate this element, because they are designed in accordance with the same theoretical formulation of torture presented in this book. It is indeed no coincidence that the CIA had a keen interest in Seligman and his associates’ concept of “learned helplessness” and employed psychologists to “enhance” their interrogation techniques through the use of this concept. Although the term “enhanced interrogation techniques” is a euphemism used as a disguise for torture, it carries an important element of truth in that these techniques are literally enhanced in their psychological impact through the use of this concept. This is because helplessness is the core defining element of torture from a psychological point of view. These techniques are essentially derived from the CIA’s Kubark manual, which makes this key element of torture amply clear. In a sense they could be regarded as a ‘distilled’ version of Kubark techniques in excluding some blatantly objectionable methods but retaining the relatively subtler but nonetheless the most effective psychological elements of torture. As such, they serve as a useful template that helps us better understand the psychology of torture. This is also the reason why a chapter was devoted to a learning theory analysis of the Kubark manual. As argued and demonstrated throughout the book, it is neither possible to understand nor define torture in whatever form and context it might take place without recourse to the concept of helplessness. Ironically perhaps, the very same concept that the CIA used to enhance its “interrogation techniques” also helps us understand how best to treat torture trauma. Thus, a focus on this issue is also intended for a better understanding of torture by care providers for survivors.
Second, the U.S. is a major power with substantial capacity to influence the rest of the world in many areas, including policies concerning human rights. Its foreign policies and the position it adopts on human rights can not only have a direct impact on people around the world but also set an example for other nations. In my opinion, its position after 9/11 in allowing torture under the disguise of “enhanced interrogation techniques” represents a setback for human rights movement globally. The second half of the 20th century had seen some progress in at least achieving wide recognition of the immorality of torture in the world community. With the “war-on-terror,” however, we have seen challenges to international law with distorted interpretations of torture, euphemisms such as “enhanced interrogation techniques,” invention of the concept of “torture lite,” and endless debates on “ticking bomb” scenarios or whether torture works, all of which serve to erode moral values against torture in the service of various political agendas. However short-lived it might be, the U.S. experience with torture in the early 2000s is merely a symptom of the progressive ‘disease’ called globalization and thus a sign of worse things to come. International law prohibiting torture might still be standing firmly in its place but it can be effective only to the extent governments are prepared to abide by it, as the U.S. experience has demonstrated. Governments are most vulnerable to public opinion, both nationally and internationally, and thus a fight against human rights violations is best conceived as a fight for world public opinion. The U.S. experience with torture has been most useful in revealing various disinformation strategies designed to shape public opinion and what needs to be done to counter them. Thus, a focus on “enhanced interrogation techniques” as a useful template in understanding torture is also intended as a means of clarifying public misconceptions, which might perhaps be of some value in reinforcing moral values against torture not only in the U.S. but also globally.
Challenges in Reconciling Law with Science
When the publishers sent my proposal for this book for peer review, some reviewers were critical of the idea of an interdisciplinary approach to torture, pointing to the difficulties in bringing law and science together around a common understanding of torture. The differences between legal and scientific thinking around definitional issues indeed became evident at the very first meeting of the authors, leading to heated debates over various issues. This meeting left me plagued with certain questions that are difficult to address to everyone’s satisfaction. Can the normative nature of legal thinking be reconciled with scientific reasoning and evidence in understanding torture? Do they need to be reconciled in the first place? If so, how can this be achieved, when there are disagreements on various issues? Should one perspective prevail over the other, when disagreements cannot be resolved, and if so, for what reasons? Having pondered a great deal over these issues during the three years of preparing this book, I finally arrived at the obvious and simple conclusion that law and science can and should agree at least on the fundamental principles of morality, which dictate maximum protection for people. Such protection requires a legal understanding of torture that is comparable to its psychological formulation in its coverage of torture in different contexts and settings. Through normative thinking or moral reasoning, one could define or interpret torture in any way one sees fit. But can it capture torture in every context, shape, form, or disguise it comes? This is indeed the important question from the standpoint of people who suffer from it. Behavioral sciences, on the other hand, deal with universals in human behavior and thus have much to contribute to a legal understanding of torture in ensuring maximum protection.
In the process of preparing this book, I became increasingly aware of the extent to which international law has evolved beyond state-perpetrated torture to recognize torture in different settings and contexts. Such broader understanding of torture is detailed in the chapters by Juan Méndez & Nicolescu, Nora Sveaass, and Yuval Ginbar. Lisa Davis tells us the story of this evolution with respect to gender-based violence. This trend is fully consistent with the psychological formulation of torture presented in the first part of the book. The increasing convergence between legal and psychological understandings of torture in the last few decades is arguably one of the most important findings of this book.
Nonetheless, legal and psychological perspectives on torture differ in some other ways and thus objections to some conclusions about what a psychological formulation might imply for legal interpretations of torture can be anticipated. Indeed, some disagreements have already been voiced in this book. Most importantly, it could be argued – and quite rightly so – that the broader understanding of torture implied by a learning theory formulation would pose problems in its implementation. I am of course aware of the socio-political realities of the world and of the fact that such understanding can only evolve with increasing demands for higher levels of protection and an increasing respect for human rights globally. Furthermore, this is likely to be a gradual process, spanning decades or perhaps even centuries. Such evolution, however, can only be possible with increased awareness of the true breadth of the concept of torture and this is indeed what this book attempts to achieve by offering a scientific formulation of torture. After all, laws reflect the norms and moral values of their time and change over time as these norms and values evolve. Science, on the other hand, deals with ‘facts,’ which remain as such over time, at least until proven otherwise. In this sense this book is also intended for future generations to come and, therefore, it is important to view its purpose in this context.
It is also important to note that, as both the editor and an author on five chapters of this book, an assessment of what a psychological formulation of torture might imply for international law has been a particularly challenging exercise for me as a behavioral scientist without sufficient insights into the labyrinthine intricacies of legal thinking that goes into deciding what constitutes torture. On some legal issues, I felt confident enough to present critical reviews. On others, I refrained from such reviews when I thought that I may be overlooking important factual information about international law. I tried my best to minimize this risk but the success of this cautionary effort remains to be seen. In any event, this book should be seen as an effort to propose a theory- and evidence-based approach to torture in the understanding that law professionals are in a better position to assess what it might imply for the wide range of legal issues around torture, some of which may not even be covered in this book. I should also emphasize here that my critical reviews are not intended as an argument in favor of a new or revised definition. They might, however, imply a need for revised understanding of various issues pertaining to torture in the light of relevant empirical evidence.
Finally, the learning theory formulation of torture presented in this book can be traced back to my 1992 book and the publications that followed, all of which were severely criticized by some for “medicalizing” and “diluting” the concept of torture. Yet, within the time frame of only a few decades, the understanding of torture in international law has evolved to come closer to this formulation and will likely continue to do so with increasing awareness of the true breadth of the concept of torture. As such, I cannot help seeing this development as a vindication of my work since the early 1990s and its implications for international law. Nonetheless, objections to a broader understanding of torture are still to be expected. In highlighting what torture is from a psychological perspective, this book should make it clear that torture in different settings or contexts is no less severe or morally repugnant than torture during detention or imprisonment. Chapter 5 on domestic violence, which is intended as a ‘case study’ of one of the many forms of torture taking place in different settings, demonstrates the fallacy of this kind of arguments. Furthermore, torture in its psychological sense is far more prevalent than State-perpetrated torture in the world and protection and care of its survivors are no less important or urgent issues. Thus, critics of a broader understanding of torture need to reconsider their position in the light of a scientific understanding of torture and try to understand what torture really is, particularly from the perspective of all those who suffer from it. Hopefully, this book will facilitate such understanding for them, as well as all others concerned with human rights.
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Mass Trauma, Mental Health & Human Rights 